it is not a commonwealth.1 The representation in this body is instructed, and no uninstructed voice can be counted. This is expressly provided in the constitution. The constitution. also directs that the votes shall be given by commonwealths. It results that the vote of a commonwealth cannot be divided, and that the entire vote of the commonwealth may be given by a portion of the voices to which the commonwealth is entitled. The Council, however, will accept without question the declaration of the representatives of any commonwealth as to the fact and tenor of their instructions. If they misrepresent the commonwealth, the commonwealth may deal with them as it judges proper, but it cannot escape the obligation incurred by their vote under the plea of ultra vires.2 4. The Qualifications for Membership in the Diet and Federal Council. The constitution contains no provisions upon this subject. By statute, German citizenship for a year before the date of the election, the attainment of the twenty-fifth year, and the male sex, are made qualifications for membership in the Diet.3 On the other hand, the determination of the qualifications for membership in the Federal Council are, impliedly, left to each commonwealth in the case of its own representative or representatives. Disqualifications are prescribed, however, by the constitution for membership in either body, and by statute also for membership in the Diet. The constitutional disqualifications are, in regard to membership in the Diet, the holding of a seat, at the same time, in the Federal Council, or the holding of an Imperial or commonwealth civil office, at the same time.5 The latter disqualification does not obtain, if the 1 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 49. 2 Laband, Das Staatsrecht des deutschen Reiches, Bd. I, SS. 226, 229. 3 Schulze, Lehrbuch des deutschen Staatsrechtes, Zweites Buch, S. 77; Wahlge setz, § 4. Bundesgesetzblatt, 1869, S. 145 ff. 4 Reichsverfassung, Art. 9. 5 Ibid. Art. 21. election to the seat in the Diet shall have been subsequent to the appointment to office, and it may be removed by a re-election to the seat after the appointment to the particular office.1 It is also implied in the constitution that the reigning princes of the several commonwealths are disqualified from holding seats in the Diet, since they instruct the members of the Federal Council.2 The constitutional disqualification, in regard to the members of the Federal Council, is simply the holding of a seat, at the same time, in the Diet.3 The statutory disqualifications for membership in the Diet are the same as those for the exercise of the suffrage, with two exceptions: military officers and soldiers in active service may be chosen, and residence within the Empire at the time of the election is not required.1 5. The Rights and Privileges of Members. The members of the Diet are exempted by the constitution from trial or arrest upon a criminal charge during the session of the Diet, except by consent of the Diet, unless the member be seized in the commission of the criminal act or upon the day next following. The members are also exempt from arrest on account of debt during the session, without the consent of the Diet. If they should be already under trial at the opening of the session or under arrest upon criminal charge or under arrest for civil cause, they have the constitutional right, upon demand of the Diet, to a release from arrest and to a suspension of trial during the continuance of the session. It will be remarked that these provisions do not protect the members of the Diet against arrest in execu tion of a judgment already pronounced against them.“ 1 Reichsverfassung, Art. 21. 2 Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 293. 8 Reichsverfassung, Art. 9. 4 Schulze, Lehrbuch des deutschen Staatsrechts, Zweites Buch, S. 77; Wahl gesetz, § 4; Bundesgesetzblatt, 1869, S. 145 ff. 5 Reichsverfassung, Art. 31. 6 Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 330 ff. The members of the Diet are exempted, by the constitution, from any legal responsibility to any body, except to the Diet itself, for words spoken or votes given in the Diet.1 The language of the constitution requires that the words. shall have been spoken in the course of legislative business and in connection therewith. Finally, the members of the Diet have the privilege by the constitution of freedom from insult while in the exercise of their public powers or on account of the exercise of their public powers.2 This privilege, however, is not enforceable through Imperial organs. The constitution simply declares that such offences shall be punished by each commonwealth, in the case of the members elected from it, and shall be dealt with by each commonwealth in accordance with the laws of the commonwealth protecting its own legislators or officers against such offences.3 5 The constitution confers this same privilege upon the members of the Federal Council. It also confers upon the members of the Federal Council the extra-territoriality of foreign ministers when in attendance upon the sessions of that body and makes it obligatory upon the Emperor to protect them in the enjoyment of this privilege. Laband seems to think that this privilege does not extend to the Prussian members of the body, since they would be within the territory subject to the Prussian King and therefore under his protection, but the constitution makes no such exception. Its words are general, and it throws upon the Emperor, not upon the Prussian King, the duty of sustaining the privilege. Finally, the constitution confers upon the members of the Federal Council the right to appear in the Diet, and to be heard there in expressing the views of the government 2 Ibid. Art. 74. 1 Reichsverfassung, Art. 30. which the member represents, upon any subject under consideration in the Diet; and that, too, even though the matter shall have been already passed upon in the Federal Council, and passed upon in a manner contrary to the views expressed.1 The members of the Federal Council, however, are not protected by the constitution against the governments from which they hold their mandates. They are accountable to their respective commonwealth governments for their conduct and votes in the Council.2 There are certain other rights and privileges secured to the members of these bodies by statute, but I will not undertake to enumerate them in a work upon constitutional law. It is my purpose to expose gaps in the constitutional law rather than to undertake to fill them by the provisions of statute law. 6. The Assembly, Adjournment, Prorogation and Dissolution of the Legislature. The constitution does not accord to the legislative bodies any independent control over these subjects, except, perhaps, adjournment from day to day. The Emperor is vested with the power of calling, opening, adjourning and proroguing both bodies and of dissolving the Diet. The constitution, however, places limitations upon. the Imperial prerogative in regard to these acts, both directly and through requirements that one or the other of these bodies shall participate in the exercise of these powers. For example, the Emperor must call these bodies annually; 4 in case of a dissolution of the Diet, he must order the elections within sixty days from the date of the dissolution and call the new Diet to assemble within ninety days of the same date." The consideration of these points belongs more properly under the division devoted to the executive powers. 1 Reichsverfassung, Art. 9. 2 Laband, Das Staatsrecht des deutschen Reichs, Bd. I, S. 225. 5 Ibid. Art. 25. The following limitations, however, must be treated in this connection, vis; the power of the Diet to prevent its adjournment by the Emperor1 more than once during the same session, or for more than thirty days; the power of the Federal Council to prevent the dissolution of the Diet;2 and the power of the Federal Council to cause its own assembly.3 It results from the first of these limitations that the Diet has a constitutional power of independent re-assembly thirty days after an adjournment by Imperial order, and that it is under no legal obligation to obey a command of the Emperor to adjourn for a second time during the same session. The second limitation deprives the Emperor of arbitrary power over the tenure of the members of the Diet, and makes it presumable that no dissolution will be undertaken without good and sufficient cause. In fact, the Diet is dissolved by the Federal Council rather than by the Emperor. The third limitation makes it obligatory upon the Emperor to call the Federal Council when this is demanded by one-third of the voices in that body. 7. The Principle of the Quorum. The constitution fixes the quorum of the Diet at the majority of the legal number of members. On the other hand, the constitution makes no provision whatsoever in regard to the quorum of the Federal Council. Some of the commentators conclude from this that, if proper notice has been given to the members, the presence of the president of the Federal Council or his substitute at a meeting of this body is all that is necessary to make it competent to do business.5 8. The Internal Organization of the Legislative Bodies. The constitution vests in the Diet the power to determine finally upon the election of its members, to choose all its own 1 Reichsverfassung, Art. 26. 8 Ibid. Art. 14. 2 Ibid. Art. 24. 4 Ibid. Art. 28. 5 Von Rönne, Das Staatsrecht des deutschen Reichs, Bd. I, SS. 204, 205. |